A prominent legal luminary and a former professor of law with the Imo State University, Owerri who is also a Senior Advocate of Nigerian (SAN) and former Attorney General and Commissioner for Justice in Imo State, Professor (Chief) Francis C. Dike, has picked holes with the recent judgment delivered by Justice Okon Abang of Abuja Federal High Court which ordered the Independent National Electoral Commission (INEC) to issue a Certificate of Return to the former Governor of Imo State, Chief Rochas Okorocha, as the winner of the National Assembly election for Imo West Senatorial District.
INEC had earlier withheld the Certificate of Return (CoR) on the allegation by her staff, and the Returning Officer, Professors Ibeawuchi that he declared the Imo West result under duress.
Chief Okorocha later approached the court to order the electoral body to issue him with the Certificate of Return, a prayer which the Abuja Court granted on Friday June 7, 2019, after a tension soaked legal battle.
In his reaction,Prof Dike said that his grouse with the judgment is that the judge failed to consider two issues before the court together and preferred to postpone the other issue and that the failure has constituted a miscarriage of justice.
In a statement he issued from USA, the former Imo State Attorney General, Prof. Dike observed in his opinion that the learned judge acknowledged two separate but concurrent issues in the case but regrettably failed to reconcile them.
He enumerated the issues to be (1) INEC becomes “functus” officio after announcing result and (2) Duress applied on the electoral officer by a candidate on an electoral officer to announce a result in favour of a candidate.
“The learned judge treated the second as “orbiter” by saying it’s a matter for separate consideration when he went on to deal with the first as rationale for his judgment i.e. that INEC having announced a result, it cannot deny the result, so to speak it had become “functus officio”.
This reasoning is with due respect, incorrect as the learned judge having adverted to the evidence of duress, he with respect, ought to have decided whether there was any announcement of result under the law? Should the court not have imported the maxim of non est factum (it’s not my deed) i.e. what is apparent is not real.
He ought to consider that before applying the first conclusion. Words control, or define the mental state of a person’s conduct. Over 100 years ago, a man holding his sword said to another “were it not for the assizes, I would have run this sword through you’. In a suit for assault, the court held that the defendant’s words governed his act and he could not be liable for assault.
The Electoral officer said I am announcing this under duress only translates as “I’m not doing this as my own”. To hold otherwise does not make common sense.
From above, if he did not announce his result then of course that was also not that of his master, INEC.
He was hijacked and the most charitable description is to say he was servant albeit unwilling servant of the hijacker who in law should be vicariously the person doing the announcement.
My grouse with the judgment is that the court failed to consider both issues before him together but preferred to postpone it and the failure constituted a miscarriage of justice”,he concluded.
In an earlier statement by one of the Directors, who Okorocha has pointedly accused of master minding the refusal to give him a Certificate of Return, Mr. Festus Okoye, INEC stated that its hands are tied bearing in mind, that apart from the Federal High Court ruling, an Owerri High Court presided over by Justice F. Njemanze had earlier restrained INEC from issue Owelle Rochas Okorocha the Certificate of Return pending the determination of a subsisting suit in his court.
However,inspite of this uncertainity, Okorocha’s advanced team was already berthed at Abuja where they are eagerly waiting to celebrate the inauguration of their ex-Governor, Certificate of Return.